Fuller v. O'Neil

Citations

• 69 Tex. 349
• 6 S.W. 181
• 1887 Tex. LEXIS 832

Syllabus

<p>I. Trusts — Power or Trustees to Sell. — When a sale of land is made by an agent of a trustee, and there is nothing in the deed of trust authorizing the trustee to appoint an agent to make the sale for him; no title passes.</p> <p>3. Same. — A trustee empowered to sell on non-payment of the debt to secure which the trust is created, can no more appoint an agent to sell for him than he can make the sale at a time or place, or for a character of consideration different from that authorized in the deed of trust.</p> <p>3. Equity. — If one who is sued for title to land has equities which entitle him to demand payment of a debt before surrendering possession, he shouid. set them up in his answer. He is not entitled to such affirmative relief under the plea of not guilty.</p> <p>4. Case Distinguished. — This case distinguished from that of a mart gagor who seeks to recover property of the mortgagee rightfully in possession under a deed absolute on its face. There, the burden of showing payment of the debt is on the plaintiff, and he must do so as against the plea of not guilty.</p>